Hansraj Vs. Bijai Ram Singh - Court Judgment

LegalCrystal Citation

legalcrystal.com/470747

Court

Allahabad

Decided On

Oct-17-1916

Judge

Walsh and ;Stuart, JJ.

Reported in

AIR1917All144; 40Ind.Cas.621

Appellant

Hansraj

Respondent

Bijai Ram Singh

Excerpt:.....105(2) - decision on interlocutory matter, failure to appeal against, effect of--appeal--point going to root of suit not argued, effect of. - - that fact is not unimportant because it is perfectly clear that the point was present to the mind of those who were advising the defendant in the court of first instance from the very exception of the suit itself, and not only that but it was present to their mind as a preliminary objection to the whole suit. in the face of a ground raised in that way in the notice of appeal, it would be an idle thing for any judge to send back the suit and put the parties to the expense of a second trial upon the merits unless he was satisfied that the court below to which he was sending the case, had no jurisdiction to try it. further by now asserting..........the plaint once more directing it to be presented to the proper court. against that order the present appeal is brought. now the one question about which there has been substantial argument, is whether or not the first order of the first district judge, namely, the 17th of june 1913, dealt with the question of jurisdiction it is difficult to see how a judge, where in the proceedings in the court below there has been a serious controversy as to the jurisdiction of the court to entertain the suit at all, could remand the suit to be retried by that court without holding that that court had jurisdiction to try it. but in this particular case pursuing the course which they had originally taken in the munsif's court, the defendant's advisers when they appealed for the first time, put in.....

Judgment:

1. In this case it is not necessary for us to decide the question as to whether this suit was cognisable in the district of Agra or not. That is a point on which there appears to be a considerable difference of opinion, so recently as 1914 and 1915 in this Court, and one day no doubt it will be necessary to set the question finally at rest, but, in our opinion, this appeal must be allowed upon another ground. The suit is brought to set aside a decree which it is alleged that the defendant fraudulently obtained ex parte against the plaintiff in the Court of Howrah in Bengal and which he has endeavoured to enforce by execution against the plaintiff in the district where the plaintiff resides and has property. The suit has had a somewhat varied career. It was originally heard in May 1912 upon a preliminary point when the Munsif decided that he had jurisdiction to determine the suit. That fact is not unimportant because it is perfectly clear that the point was present to the mind of those who were advising the defendant in the Court of First Instance from the very exception of the suit itself, and not only that but it was present to their mind as a preliminary objection to the whole suit. It was determined by the Munsif in favour of the plaintiff and some months afterwards, namely, in January 1913, the plaintiff obtained a decree upon the merits in the same Court from another Munsif. From that decree an appeal was brought to the District Judge and determined by Mr. Lyle on the l7th of June 1913 By the decree passed on that occasion for a reason which it is not necessary to mention, the District Judge remanded the case for retrial in the Munsif's Court. It will be necessary in a moment to refer again to that judgment, but for the present it is only necessary to observe that that order of remand was open to an appeal and no appeal was brought from it. The suit, therefore, returned once more to be dealt with by the Munsif and it was determined for the second time upon the merits on the 31st of March 1914. In December 1914 a further appeal was brought which unfortunately came before a different District Judge in the same Court at Agra and he held, basing himself upon the authority reported as Dau Diyal v. Munna Lal 24 Ind. Cas. 978 : 36 A. 564 : 12 A.L.L. 955 that the original Court, the Munsif's Court, had no jurisdiction to try the suit at all, and, he, therefore, returned the plaint once more directing it to be presented to the proper Court. Against that order the present appeal is brought. Now the one question about which there has been substantial argument, is whether or not the first order of the first District Judge, namely, the 17th of June 1913, dealt with the question of jurisdiction It is difficult to see how a Judge, where in the proceedings in the Court below there has been a serious controversy as to the jurisdiction of the Court to entertain the suit at all, could remand the suit to be retried by that Court without holding that that Court had jurisdiction to try it. But in this particular case pursuing the course which they had originally taken in the Munsif's Court, the defendant's advisers when they appealed for the first time, put in the forefront of their attack a ground of appeal that the suit was not cognizable at all by the Munsif's Court at Fatehgarh. Mr. Uma Shankar Bajpai has argued with his usual ability, that that point has not been decided by the District Judge and in a sense that is true. He does not expressly refer to it nor give any reasons for refusing to give any effect to the ground of appeal raised, but it seems to us that one or two consequences must follow where an appeal comes before an Appellate Court and is heard upon the merits. If this point, which went to the root of the suit, was not argued, it must have been abandoned and, therefore, it is equivalent to a decision against the appellant. On the other hand if the point was argued, even though the Judge himself does not give any reasons for dismissing it in his judgment, the mere fact that he held that the suit was properly valued and cognizable by the Munsif's Court, involved a holding by him that the Munsif had jurisdiction to try it. In the face of a ground raised in that way in the notice of appeal, it would be an idle thing for any Judge to send back the suit and put the parties to the expense of a second trial upon the merits unless he was satisfied that the Court below to which he was sending the case, had no jurisdiction to try it. In our view the judgment of the 17th of June 1913 was a decision against the appellant, the present respondent, that the Munsif's Court had jurisdiction to try the suit. It seems to us that that is fatal to the present respondent's position upon two grounds. In a case reported as Ram Kirpal v. Rup Kuari 6 A. 269 : 11 I.A. 37 : 4 Sar. P.C. J. 489 : 3 Ind. Dec. (N.S.) 718 (P.C.) the Privy Council decided that apart altogether from what is now section of the Civil Procedure Code, or what is known as res judicata, a decision whether appealable or not, if not appealed from in a suit given on an interlocutory matter, is binding upon the parties in every proceeding in that suit. To quote from the judgment of Sir Barnes Peacock 'If an appeal did not lie the judgment was final. If the appeal did lie and none was preferred, the judgment was equally final and binding upon the parties and those claiming under them.' Applying the principle of that case it is quite clear that the judgment of Mr. Lyle is final and binding on the present respondents, that there was jurisdiction in the Munsif's Court to try the suit. It seems to us further that there is another ground, namely, Sub-section (2) of Section 105 which stands in the way of the respondents in this Court. That subsection runs as follows: 'Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.' Now two things are quite clear that if there was no jurisdiction for the Munsif to try the suit at all, the present respondent was the person aggrieved by the order of remand. Further by now asserting that there was no jurisdiction, he is clearly attempting to dispute its correctness. It is quite true that on one ground at any rate, which was decided in his favour, the case was sent back for re-trial and to that extent he is not disputing and is not likely ever to dispute the correctness of the order of remand. But that is only a partial statement of the position. By asserting that the Court below was without jurisdiction altogether, he is clearly challenging or disputing the correctness of the decision of a Court which ordered that Court to try it. It seems to us that the case comes within the mischief of Sub-section (2) of Section 105, and on that account he is prevented now from questioning the correctness of the decision of Mr. Lyle. The result is that this appeal must be allowed and the order of the District Judge directing the plaint to be returned to the other Court, must be reversed and restored to the file to be heard on the merits in the ordinary course.